Pro-lifers are celebrating the decision announced by the Supreme Court on Tuesday in National Institute of Family and Life Advocates v. Becerra. The State of California had required that pro-life centers that counsel pregnant women put up notices, in large type, blasting the news that the state offered pregnant women free or “low-cost” services, including abortion, along with a phone number. So-called “unlicensed clinics,” which counsel women without such equipment as obstetric ultrasounds and sonograms, were obliged to inform their clients that they were not licensed to provide medical services. What counts as a real medical clinic, or as real medicine, was revealed in the name of the Act: The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. Clinics that counsel pregnant women on the advantages of giving birth, rather than killing their children, would be stamped faux-clinics, merely pretending to advise on matters medical.
But as Justice Clarence Thomas wrote, speaking for the majority, California could readily “inform low-income women about its services ‘without burdening a speaker with unwanted speech.’” For the unlicensed clinic, he said, the act “imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest.” And so Thomas concluded that the law imposed “an unduly burdensome disclosure requirement that will chill … protected speech.” Justice Kennedy put the matter more sharply in his concurring opinion, insisting: “Governments must not be allowed to force persons to express a message contrary to their deepest convictions.”
Many hope that the decision in NIFLA will have an influence beyond clinics on abortion. The holding may offer protection to people who are put upon to obey the new political orthodoxies of same-sex marriage and the homosexual life. It may plausibly cover florists and bakers who find their freedom of expression compromised, say, by the demand that they perform their arts and lend their endorsement to same-sex marriage. The logic of the NIFLA ruling extends, then, well beyond abortion. But the irony is that the opinions in the case are quite bereft of any premise or reasoning that would help to plant or even support the pro-life argument.
The problem may be unlocked as soon as we begin to recall that it is not unknown in our law to compel people to speak words that may be quite at odds with their convictions. The reverse-image of the current case may be found almost thirty years ago in Rust v. Sullivan (1990). The first Bush administration had barred employees of pregnancy centers supported by federal funds under Title X from counseling clients in favor of abortion. This rule was imposed on many doctors and medical workers who bore the firmest convictions on the rightness and desirability of abortion—so much so that they raised a claim under the First Amendment that they were being muffled from speaking their true convictions and offering their authentic “medical” advice. But Chief Justice Rehnquist drew on the words of a lower court to explain that the employees of medical centers “remain free to say whatever they wish about abortion outside the Title X project.” Or as he put it himself, “the employees’ freedom of expression is limited during the time that they actually work for the project, but this limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority.” With that reasoning, it could be said quite as well that the employees in NIFLA were fully free to speak their pro-life convictions in their lives outside the clinics. It was only within the clinics that they were governed by laws that were not at all anomalous: laws that obliged companies to divulge information about their products, including information they would rather not mention.
We think here readily of tobacco and pharmaceutical companies, which are obliged to warn on their packs of the hazards of their products. Justice Thomas sounded the perennial alarm about restrictions based on the “content” of speech. Yet he also noted “content-based regulations ‘in the field of medicine and public health, where information can save lives.’” Justice Scalia had sounded that theme strongly in the past about restrictions based on the “content” of speech. But he persistently elicited from his colleagues a virtual litany of laws dealing with the content of speech. And so, as Justice Breyer noted in dissent, “Virtually every disclosure law could be considered ‘content-based,’ for virtually every disclosure law requires individuals to ‘speak a particular message.’” Was it “content-based laws” you wanted? Justice Breyer unloaded a hefty sample of them:
These include numerous commonly found disclosure requirements relating to the medical profession: … requiring hospitals to tell parents about child seat belts; … requiring hospitals to ask incoming patients if they would like the facility to give their family information about patients’ rights and responsibilities; requiring hospitals to tell parents of newborns about pertussis disease and the available vaccine. These also include numerous disclosure requirements found in other areas. See, e.g., N. Y. C. Rules & Regs., tit. 1, §27–01 (2018) (requiring signs by elevators showing stair locations); San Francisco Dept. of Health, Director’s Rules & Regs., Garbage and Refuse (July 8, 2010) (requiring property owners to inform tenants about garbage disposal procedures).
For his own part, Justice Thomas recognized a battery of requirements that were reasonable parts of the regulation of medical practice. They were of a piece with laws that require doctors to obtain the informed consent of patients before performing surgery, a requirement once described as “firmly entrenched in American tort law.” But that explanation teed up Justice Breyer’s telling response: “The majority … does not explain why the Act here, which is justified in part by health and safety considerations, does not fall within its ‘health’ category.” An apt question, if abortion and the guidance of pregnant women to childbirth have equal standing as aspects of health and medicine. On that, more in a moment.
With his accent on “informed consent,” Thomas backed into a surprising trap. Planned Parenthood v. Casey (1992) has held a place of infamy among pro-lifers, for it was the case in which three Republican appointees (O’Connor, Kennedy, and Souter) deserted the conservative side to sustain Roe v. Wade when it seemed on the verge of being toppled. Yet people forget that the Court in Casey sustained a mandate to provide certain information to patients, even though the information sought to encourage a path away from abortion. As Breyer recalled:
That law required the doctor to tell the woman about the nature of the abortion procedure, the health risks of abortion and of childbirth, the “‘probable gestational age of the unborn child,’” and the availability of printed materials describing the fetus, medical assistance for childbirth, potential child support, and the agencies that would provide adoption services (or other alternatives to abortion).
Even doctors and nurses who strongly favored abortion would be obliged to speak these words. Further, as Breyer noted, the Court in Casey overturned several earlier decisions in which it had struck down requirements of this kind. The Court admitted in Casey that the law cut against a possible “right of a physician not to provide information about the risks of abortion, and childbirth, in the manner mandated by the State.” But the restrictions on speech were seen as part of the regulation of the medical procedure of abortion. And so the Court concluded: “We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.”
For Breyer, that set up the clincher:
If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services? … [There] is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and “what is sauce for the goose is normally sauce for the gander.”
And that would indeed be the clincher—if one understood abortion and childbirth to stand on the same moral plane as plausible and legitimate parts of “healthcare.” When we strip everything else away, that is the critical point separating the two sides in this case. Breyer’s dissent could not have been refuted unless the majority were willing to address that core question.
We may hear an echo of the line from Judge Jon Newman in one of the early cases after Roe v. Wade: that “abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy.” They are “simply two alternative medical methods” if there is nothing of medical or moral significance between the deliberate taking of innocent life and the preservation of it. The judges who have settled in securely with the “right to abortion” have absorbed the notion that abortion is just another legitimate medical procedure. They invoke a concern for equality of treatment when the law seeks to favor childbirth over abortion. The Court in NIFLA did nothing to highlight or defend that distinction, or to break the liberal side from its settled conviction here. But was there really nothing that could be said? Returning for a moment to Rust v. Sullivan, we find Chief Justice Rehnquist arguing that it was legitimate to bar doctors from counseling in favor of abortion, because it had been settled at least since Maher v. Roe (1977) that abortion may be legitimate as a private choice, but the government may “make a value judgment favoring childbirth over abortion.”
A value judgment. Some trace that term back to Nietzsche; it would come into play when people lost the conviction that we could speak seriously of “moral truths.” We explain our moral preferences by saying that we impute “value” to them. In this perspective, liberty is superior to slavery because I impute value to liberty—not because slavery is wrong in principle even for those who don’t mind it. This state of mind was reflected in a speech of Justice Rehnquist from 1973, wherein he famously said that if a society
adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do indeed take on a generalized moral rightness or goodness. They assume a general acceptance neither because of any intrinsic worth nor because of … someone’s idea of natural justice but instead simply because they have been incorporated in a constitution by a people. (emphasis added)
Rehnquist was roundly assailed for this speech. To say that liberty has no intrinsic worth, that it has the standing of goodness or rightness only when it has been enacted in the positive law, is to say that there are no intrinsic moral truths. It is chilling to realize that the conservative justices on the Court have mounted no stronger argument than this to explain why innocent life in the womb has a claim to be protected.
Justice Scalia himself said that if legislatures were to make abortion thoroughly legal, he would be obliged as a judge to enforce that law. The conservative justices have never found in the Constitution, or in the principles of moral reasoning lying behind the Constitution, any ground for placing constitutional protections on the child in the womb. The classic conservative response to Roe v. Wade has held that we must remove the “constitutional right to abortion” and send the matter back to the states. Scalia was also clear that state legislatures had a traditional authority to shape the morals of the local population, as by barring prostitution and lewd entertainments. He was not entirely convinced that any objective moral truths lay behind those policies and justified them. He was convinced mainly that local majorities had authority to make judgments that reflected the moral sentiments of their communities. But if we follow this reasoning, then the policy chosen by the State of California in NIFLA simply reflected the moral judgment of that community—in this case, that abortion is a thoroughly legitimate medical procedure, and that women should suffer no discouragement from choosing it. That would have been quite enough to sustain the law. But the even more sobering recognition is that nothing in the majority holding in NIFLA would be altered even if Roe v. Wade were overruled tomorrow. By the reigning consensus in conservative jurisprudence, the question would be returned to the states and the Court would presume in favor of the “value judgment” enacted by the California legislature.
But is there nothing more that could have been said here, even by the conservative jurists? Surely Justice Thomas could have offered a slight addition to the words of Chief Justice Rehnquist by saying something as simple as this: that the government may favor childbirth over abortion, because there is the most obvious difference between the taking of innocent life and the protection of life. Or, even more simply: that death is not a good that can rival the good of life. John Finnis used to illustrate this point with examples from everyday life: We look both ways before crossing a street; we have drives to collect food to relieve starvation; the crew of an ambulance sets off with the goal of rescuing a victim, not of speeding him to his death in order to spare his family hard choices. We can imagine a young woman, daughter of members of the Hemlock Society, babysitting for children and suddenly finding that the house is on fire. She has been schooled on the point that death is a good that may be plausibly chosen. Why should she not choose that “good” for the children in her charge? But would any jury clear a person who offered that account of why she didn’t rescue the children from the burning house? Or would it rather fall back on that part of natural law grounded in a common sense that precedes “theory,” a common sense so firmly woven into our practical judgment that we may hardly be aware of it any longer? Then the jury would simply say, as of old, that death cannot stand as a rival good to life.
It would not have been difficult to weave those lines into the opinion of the Court in NIFLA. That could have been done even while the conservative lawyers were being careful not to ask for the overruling of Roe. But that simple move would have suggested that a cohort of the judges is alert to the deep premises that call Roe into question. And if some of them are truly hoping that Roe might someday be overturned, then a move like this would place in the record lines that might later be drawn upon to explain the Court’s restoration of legal protection for life in the womb.
When Roe v. Wade was decided, the dissenting opinions by Justices Rehnquist and Byron White were grounded in the mechanistic, positivist argument that abortion was nowhere mentioned in the text of the Constitution. Neither justice drew upon the rich briefs offered in the case, weaving embryology with principled reasoning and dealing with the very substance of abortion. And so we may be moved by NIFLA to wonder now: Have the conservative judges become so settled within the premises of that argument, so anchored in the positive law, that they can no longer see beyond it?
In the meantime, with other friends, I'm relieved by the outcome in NIFLA v. Becerra, and grateful to those who engaged their wits and treasure in advancing the argument through the courts. But if we ask just what was decisive here, we are led beyond the lines about “coerced speech” and can say with candor that it came down to this: The presidential election of 2016 brought us Justice Gorsuch rather than Justice Garland. We avoided adding one more judge to the cohort who view abortion as just another medical procedure.
Hadley Arkes is Ney Professor of Jurisprudence Emeritus at Amherst College and founder and director of the James Wilson Institute on Natural Rights & the American Founding.